476 F.3d 1283 (11th Cir. 2007), 05-10688, United States v. Malol

• Citation: 476 F.3d 1283
• Party Name: UNITED STATES of America, Plaintiff-Appellee, v. Yair MALOL, a.k.a. Yanni, a.k.a. Charlie Levy, Defendant-Appellant.
• Case Date: February 02, 2007
• Court: United States Courts of Appeals, U.S. Court of Appeals — Eleventh Circuit

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476 F.3d 1283 (11th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,

v.

Yair MALOL, a.k.a. Yanni, a.k.a. Charlie Levy, Defendant-Appellant.

No. 05-10688.

United States Court of Appeals, Eleventh Circuit.

February 2, 2007

Carlos Fernando Gonzalez, Diaz, Reus, Rolff & Targ, LLP, Lisa Walsh, Miami, FL, for Malol.

Evelio J. Yera, Anne R. Schultz, Asst. U.S. Atty., Miami, FL, for U.S.

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Appeal from the United States District Court for the Southern District of Florida, D. C. Docket No. 03-20157-CR-CMA

Before PRYOR and FAY, Circuit Judges, and STEELE, ^[*] District Judge.

FAY, Circuit Judge.

Yair Malol ("Malol") appeals his conviction and sentence for wire fraud, extortion and conspiracy involving moving companies he owned. First, he appeals the admission of a summary chart at trial, arguing the chart is based on inadmissible evidence and was substantially more prejudicial than probative. Also, Malol appeals the district court's determination that the fraud scheme resulted in a loss amount of more than $1 million, thereby increasing his sentence guideline 16 levels. Finally, he appeals the district court's increase of his base offense level by two due to a Notice of Claim from the Department of Transportation ("DOT"). The district court held the Notice of Claim represented "a violation of [a] prior, specific judicial or administrative order, injunction, decree, or process" as per section 2B1.1(b)(7)(B) of the 2002 Sentencing Guidelines. For the reasons set out below, we affirm as to the admission of the summary chart at trial and as to the amount of loss. However, we vacate the sentence and remand for resentencing, finding that the enhancement based upon the DOT notice was error.

BACKGROUND

Malol, the owner of several moving companies, was charged with 36 counts, including one count of conspiracy under 18 U.S.C. § 371, 16 counts of wire fraud under 18 U.S.C § 1343, 10 counts of extortion under 18 U.S.C. §§ 1951-52, eight counts of making a false bill of lading under 49 U.S.C. § 80116, and one count of conspiracy to commit money laundering under 18 U.S.C. § 1956(h). He was convicted of all but three counts.¹

A. The Investigation and Malol's Arrest

Special Agent Kimberly De Leo of the FBI testified at length about conversations with Malol. During questioning prior to his arrest in March of 2003, Malol admitted that he owned Majesty Moving Company ("Majesty"), which he opened in 1997. He said Majesty was a company that contracted with customers, via email or telephone, for interstate delivery of furniture and other residential items. When contracting with a new customer, Malol said the customer would provide a list of the items to be moved, and Majesty would calculate the initial price. Malol also stated that when the movers would arrive, there would often be discrepancies between what a customer estimated and the actual cubic footage necessary. This could cause an increase in the final charge.

Malol admitted that he opened Apollo Van Lines ("Apollo") in his wife's name because there had been numerous complaints to the Better Business Bureau involving Majesty. However, Malol operated Apollo himself and his wife was not involved. He admitted opening Apollo so potential customers would not see his name involved or connect Apollo to Majesty.²

Malol also admitted that, at the time of his arrest, he had two customers' goods in storage, due to their nonpayment. He

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said one customer's goods had been there for seven months, the other for a year. He told Agent De Leo, however, that he was not holding the goods "hostage."

B. The Undercover Operation

Special Agents William Schureck, Marie Lavelle, and retired agents Irvin Bruce and Eugene Flynn testified about an undercover operation that took place in December 2001-January 2002, when Lavelle posed as a customer moving to Atlanta, Georgia from Fort Lauderdale, Florida. The two retired agents posed as Lavelle's uncle and father. The agents told Majesty ³that Lavelle's first mover had fallen through and she urgently needed a replacement. Lavelle testified that she portrayed someone that feared the loss of a "lifetime of household goods," including photo albums and heirlooms.

On August 23, 2001, Majesty picked up the goods and the agent posing as Lavelle's uncle signed a receipt and a bill of lading. He also provided the movers with a cashier's check for $925, which was half of the original $1,850 quote. ⁴ After the moving truck was packed, loaded, and preparing to depart, the price became $4,000. Lavelle had several phone conversations with Majesty employees and with Malol about retrieving her goods, including one where she threatened to call the FBI. After this threat, Malol offered to charge the $1,850, but plus the cost of packing materials, a charge that was included in the original quote.

On September 7, one of the undercover agents, posing as Lavelle's father, drove a leased luxury car to meet Malol at his office. Once there, Malol offered to move the furniture and household goods to Atlanta for $4,576. This was ultimately reduced to $3,500, or, alternatively, Malol offered to let Lavelle pick up the goods for about $1,690. Finally, on September 10, Majesty made a final offer of $1,000 to allow Lavelle to pick up the goods in Plantation. Majesty never moved the goods to Atlanta.

C. Victims' testimony

The jury heard a number of Majesty's customers testify about their experiences in dealing with Malol's various moving companies. Samples are put forth below.

1. The Simpson Family

Rick Simpson testified that he and his family moved from Indiana to Alabama in August of 2002. After receiving an estimate of $4,800 for the move from another moving company, Simpson contacted one of Malol's companies, U.S. Moving Network. Simpson faxed them the information summarized by the other moving company and information regarding new furniture he had purchased. U.S. Moving Network gave him an estimate of $3,100. Simpson then mailed a deposit check of $2,262.

The movers picked up Simpson's furniture on August 28. After surveying his home, the movers claimed Simpson had provided an incorrect estimate of the amount of household goods to be moved. The movers informed him that an additional $1,000 was needed. Because the $4,100 total was still below the original estimate

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from the other company, and because Simpson's employer was paying for the move, he did not object. Simpson also purchased additional insurance to cover his belongings for the move, raising his coverage from 60 cents to $6.00 per pound.

The original scheduled delivery date was September 1. However, on September 1, they did not arrive. Simpson contacted the company and was told the movers would arrive on September 4. When this date arrived, the movers still did not appear. When Simpson called again, he was told the furniture would be delivered on September 8. Simpson explained that his family would be arriving on September 8, and delivery of the furniture on that day was crucial. Once again, the furniture did not arrive. This time Simpson was given a date of September 13. When the furniture did not arrive on this date, Simpson asked to speak with the owner of the company (Malol). Simpson asked Malol where his goods were stored so he could make other arrangements to have them picked up. Malol told Simpson he had to pay the balance before he would tell him where his furniture was being kept. Malol also told Simpson he would get his goods delivered, but he wanted to fax him some documents to sign first. However, he never faxed Simpson any documents.

After several more proposed delivery dates passed, Majesty delivered the furniture at 5:00 p.m. on October 1. When Majesty arrived they refused to unload the goods until Simpson paid the balance. After Simpson paid the movers, he and his family noticed that their new bedroom set, including their mattresses, was tied to the outside of the truck. Their lawnmower was tied above other bedroom furniture, and had leaked gas and oil onto it. When the movers opened the truck, it became clear that much of the newly purchased furniture, which the Simpsons had packed with extra padding before the movers picked it up, was out of its packaging and damaged. It also appeared that their boxes had been rifled through, and then retaped. When they opened their boxes, the Simpsons learned that many of their belongings had been stolen, including two leather jackets and an estimated $3,000 in Craftsman tools. They found other boxed items broken, such as wine glasses and vases.

The movers blamed the damage on a different mover, and told the Simpsons that if they had insurance, the damage would be covered. Simpson's wife attempted to deal with the company regarding the insurance coverage. Despite repeated requests and 50-60 telephone calls to the company, the company did nothing.

Some time later, the movers acknowledged having two boxes in their possession which contained the son's trophies and other personal items of great sentimental value. The movers advised, and Jennifer Vaknin, Malol's secretary, confirmed, that the boxes would be delivered. The Simpsons never received these items.

Majesty did not reimburse the Simpsons for their damaged and stolen goods--a loss of approximately $25,000.

2. Karl Johnson

In 2002, Karl Johnson made arrangements with Majesty to move his furniture and other household goods from Carson City, Nevada to Clearwater, Florida. Majesty quoted Johnson an initial price of $1,395. Majesty was to pick up the goods on August 1, which was the day Johnson's apartment lease terminated. The movers did not appear on that date. Unable to make alternative arrangements with another moving company, Johnson agreed with Majesty's new August 6 pickup date.

Majesty's movers arrived on August 6th, but after loading Johnson's belongings,

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raised the cost to $5,200. Johnson...